N.K. Sasidharan and State of Kerala v. K.R. Ramakrishnan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** **RFA NO. 257 OF 2004** **AGAINST THE JUDGMENT DATED 31.03.2003 IN O.S.NO.175 OF 1995 OF SUB COURT, SULTHANBATHERY** ## **APPELLANTS/DEFENDANTS IN THE OS:** - 1 N.K.SASIDHARAN, DIVISIONAL FOREST OFFICER, SOUTH WAYANAD DIVISION, WAYANAD DISTRICT, NOW WORKING AT TIMBER SALES DIVISION, CALICUT. - 2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT.OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV.NAGARAJ NARAYAN, SPL. GOVERNMENT PLEADER ## **RESPONDENTS/PLAINTIFF IN THE OS:** - 1 K.R.RAMAKRISHNAN(DIED), S/O.RAGHAVAN, AGRICULTURIST, RESIDING AT KARIPPAYIL HOUSE, AMBALAVAYAL P.O., SULTHANBATHERY TALUK. - 2 ADDL.R2 – SUKUMARI, AGED 64 YEARS, W/O. K.R RAMAKRISHNAN, KARIPPAYIL HOUSE, AMBALAVAYAL P.O , SULTHANBATHERY TALUK, WAYANAD DISTRICT - 673593. - 3 ADDL.R3 - REGHU K. R., AGED 41 YEARS, S/O. K.R RAMAKRISHNAN , KARIPPAYIL HOUSE, AMBALAVAYAL P.O , SULTHANBATHERY TALUK, WAYANAD DISTRICT 673593. - 4 ADDL.R4 - SHEEJA K.R., AGED 40 YEARS, D/O.K.R RAMAKRISHNAN, KARIPPAYIL HOUSE, AMBALAVAYAL P.O , SULTHANBATHERY TALUK, WAYANAD DISTRICT 673593. ADDITIONAL RESPONDENT 2 TO 4 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE RESPONDENT AS PER THE ORDER DATED 10/12/2021 IN I.A.NO.1/2020 IN RFA NO.257/2004 R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 2 :- BY ADVS. K.R.JINAN – R2 TO R4 PHILIP MATHEW – R2 TO R4 M.A.SHAJI – R2 TO R4 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 12.02.2024, ALONG WITH CO.115/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 CO NO. 115 OF 2004** ## **CROSS OBJECTOR/RESPONDENT IN RFA:** - 1 K.R.RAMAKRISHNAN (DIED), S/O.RAGHAVAN, KARIPPAYIL HOUSE, AMBALAVAYAL P.O., SULTHAN BATHERY TALUK. - 2 ADDL.CROSS OBJECTOR NO.2- SUKUMARI W/O LATE K.R RAMAKRISHNAN , KARIPPAYIL HOUSE, AMBALAVAYAL P.O , SULTHANBATHERY TALUK, WAYANAD DISTRICT 673593. - 3 ADDL.CROSS OBJECTOR NO.3 - REGHU.K.R. S/O. LATE K.R RAMAKRISHNAN , KARIPPAYIL HOUSE, AMBALAVAYAL P.O , SULTHANBATHERY TALUK, WAYANAD DISTRICT 673593. - 4 ADDL.CROSS OBJECTOR NO.3 - SHEEJA.K.R. D/O. LATE K.R RAMAKRISHNAN , KARIPPAYIL HOUSE, AMBALAVAYAL P.O, SULTHANBATHERY TALUK, WAYANAD DISTRICT 673593. THE LEGAL HEIRS OF DECEASED SOLE CROSS OBJECTOR ARE IMPLEADED AS ADDL.CROSS OBJECTORS 2 TO 4 AS PER THE ORDER DATED 31/8/2022 IN IA 1/2022. BY ADVS. SRI.PHILIP MATHEW – CO2 TO 4 SRI.K.R. JINAN – CO2 TO 4 SRI.M.A. SHAJI – CO2 TO 4 ## **RESPONDENTS/APPELLANTS IN RFA:** 1 N.K.SASIDHARAN, DIVISION FOREST OFFICER, SOUTH WAYANAD DIVISION, WAYANAD DISTRICT, NOW WORKING AT TIMBER SALES DIVISION, CALICUT. R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 4 :- 2 STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA,, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV.NAGARAJ NARAYAN, SPL.GP THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR HEARING ON 12.02.2024, ALONG WITH RFA.257/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = R.F.A.No.257 of 2004 &** ## **C.O.No.115 of 2004** **= = = = = = = = = = = = = = = = = = Dated this the 12[th] day of February, 2024** ## **JUDGMENT** A decree for damages is under challenge in this appeal and cross objection, by the defendants and the plaintiff respectively. 2. A tractor-cum-trailer owned by the plaintiff was seized on 06.11.1992, alleging involvement in the forest offences. The vehicle was released by the authorities only on 08.02.1994. According to the plaintiff, by that time, damages were caused to the vehicle. It was alleged that the 1[st] defendant, who was the then DFO, sought for payment of bribe for the release of vehicle. The suit was filed claiming damages under various heads, including cost of repairs, loss of earnings, mental agonies, etc. R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 2 :- 3. The 1[st] defendant, who was the then DFO, filed a written statement, denying the allegations levelled against him, including the alleged demand for bribe. It was contended that the seizure of the vehicle was for the involvement in illicit transport of rosewood and teak logs. Confiscation proceedings were initiated under Section 61A of the Kerala Forest Act, 1961, immediately after the seizure. The plaintiff got release of the vehicle in good condition. On these contentions, it was prayed that the suit to be dismissed. The 2[nd] defendant adopted the said contentions. 4. The trial court turned down the claim for damages for the vehicle. It, however, granted a decree for Rs.35,000/- towards loss of earnings, mental agony and legal expenses. The decree for damages is challenged in the appeal by the defendants, and the plaintiff through the cross objection, challenges the liability. R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 3 :- 5. I have heard Shri.Nagaraj Narayan, the learned Special Government Pleader, for the appellants and Shri.Philip Mathew, the learned counsel for the respondents. 6. The points that arise for determination are; - _i) Was the seizure of the vehicle illegal?_ - _ii) Was there inordinate delay on the part of the defendants in releasing the vehicle?_ - _iii) Is the appeal filed by defendants 1 and 2 jointly, maintainable?_ - _iv) Is the finding of the trial court that there is no evidence to find damages of the vehicle, sustainable?_ - _v) Is the quantum of damages granted by the trial court liable to be varied?_ 7. Ext.A17 is the confiscation file, which contains the report of the Range Officer. The report is to the effect that the vehicle is liable to be confiscated as involved in forest offence. Accordingly, the confiscation proceedings were initiated. Section 52 of the Forest Act provides for seizure of vehicle R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 4 :- involved in forest offence, in connection with the investigation. It is simultaneous thereto that the confiscation proceedings were also initiated. The trial court was right in having held that the confiscation was legal. Point 1 is answered accordingly. 8. The plaintiff alleges inordinate delay in the release of the vehicle. The seizure was on 06.11.1992 and the vehicle was released on 08.02.1994. According to the plaintiff, he had made applications as per Exts.A3 and A4 for release of the vehicle. Since the same was not considered by the defendants, the plaintiff had to approach this Court in O.P.No.11701 of 1993 and O.P.No.17360 of 1993. It is only pursuant thereto that the vehicle was released on 08.02.1994. Even then, the 1[st] defendant had made demand for cash payment of Rs.10,000/- for early release of the vehicle, it is alleged. R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 5 :- 9. Ext.A3 is dated 11.11.1992. Ext.A3 is the carbon copy of an application alleged to have been submitted. There is no material to show that Ext.A3 was in fact submitted to the defendants. Ext.A3 does not contain any endorsement to the said effect. So also, there is no postal receipt or acknowledgment. Ext.A4 is the application dated 14.07.1993. The postal acknowledgment in respect of the same is produced. The learned counsel for the respondent-plaintiff would rely on the fact that Ext.A4 makes reference to Ext.A3 application, which would probabilize the submission of Ext.A3 application. However, the mere fact that Ext.A4 application makes a reference to Ext.A3 application by itself is not sufficient to find that Ext.A3 was submitted. Here, it is relevant to note the time gap between Exts.A3 and A4, i.e., from 11.11.1992 to 14.07.1993. If Ext.A3 was submitted on 11.11.1992, under normal circumstances the plaintiff would had followed it R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 6 :- up by giving subsequent representations. There being no evidence to find the submission of Ext.A3 application or any other applications apart from Ext.A4, it could only be held that the plaintiff made application for release of the vehicle only on 14.07.1993. 10. That apart, the plaintiff had approached this Court by filing O.P.No.11701 of 1993 and O.P.No.17360 of 1993. A copy of the judgments are not produced. On verifying the copies of the judgments it is seen that, O.P.No.11701 of 1993 was disposed of by this Court as per judgment dated 13.10.1993, directing interim release of the vehicle on furnishing bank guarantee for Rs.1,50,000/- and on executing a bond. Thereafter he approached this Court in O.P.17360 of 1993 contending that he is unable to furnish bank guarantee and that the vehicle may be released on furnishing adequate immovable property. This Court accepted the prayer and as per judgment dated 17.12.1993, directed release on the R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 7 :- petitioner furnishing adequate security by way of immovable property. In _**State of Karnataka v. K. Krishnan [(2020) 7 SCC 80]**_ , the Apex Court has held that, release of a vehicle involved in forest offence is not the rule but the exception. In due compliance with the directions of this Court in the original petitions, the DFO ordered release of the vehicle. There is no material to find that there was any inordinate delay on the part of the defendants in ordering release of the vehicle. 11. Though it is alleged that the 1[st] defendant demanded an amount of Rs.10,000/- for early release of the vehicle in spite of the directions of this Court in the Original Petitions, it has been pointed out by the defendants that the 1[st] defendant had relieved the office on orders of transfer on 05.01.1994, and the order for release was passed by the successor in office on 08.02.1994. The judgment of this Court in R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 8 :- O.P.No.17360 of 1993 was on 17.12.1993. But for a mere statement regarding the alleged demand for money by the 1[st] defendant, no details are pleaded or proved. So also, as noticed supra, the evidence on record does not disclose any inordinate delay having been caused by the defendants with regard to release of the vehicle. 12. The learned counsel for the appellants would rely on Section 74 of the Forest Act, which provides indemnity to the officials for acts done in good faith in under the Forest Act. There is no plea that the seizure was not in the course of duty. Therefore, it is for the plaintiff to allege and prove lack of good faith. There is no allegations regarding lack of compliance with the procedure for seizure. I have already found that the plaintiff had failed to establish the allegation of inordinate delay caused by the defendants for release of the vehicle. Hence, the defendants are entitled for protection under Section 74 R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 9 :- of the Forest Act. 13. With regard to the allegation of damages to the vehicle, Ext.B1 is the kychit executed by the plaintiff at the time of release of the vehicle, vouching that the vehicle is in good condition. Though the plaintiff would contend that, at the time of release of the vehicle he was made to sign a blank paper on which the kychit has been fabricated, it is to be noticed that Ext.B1 contains two witnesses. That apart, in Ext.A6 representation of the plaintiff dated 16.02.1994, specific reference is made to Ext.B1 kychit dated 31.01.1994, and stating that, in Ext.B1 it was written that the vehicle was returned in good condition. This cuts at the root of the plaintiff's challenge against Ext.B1. In the light thereof, the trial court was right in having declined the claim. 14. Thus, on the above findings it can only be held that the plaintiff is not entitled for any damages. R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 10 :- The decree and judgment of the trial court to the extent it granted damages for loss of earnings, mental agony and legal expenses are liable to be interfered with. 15. The learned counsel for the respondents would contend that the 1[st] defendant having been impleaded in his personal capacity, defendants 1 and 2 could not have maintained a single appeal. Moreover, relying on Order I Rule 12 of the Code of Civil Procedure, the learned counsel would contend that, unless there is due authorisation by the 1[st] defendant, the 2[nd] defendant could not appear, plead or act on behalf of the 1[st] defendant. In spite of personal allegation having been levelled against the 1[st] defendant, he did not care to mount the witness box. This is fatal, it is argued. Adverse inference is to be drawn against him, it is contended. In support of his argument he relied on the judgment of the Apex Court in _**Iswar Bhai C.Patel alias Bachu Bhai Patel v. Harihar Behera and another (1999) 3 SCC 457**_ . R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 11 :- 16. Defendants 1 and 2 had filed separate written statements. As could be noticed from the written statement of the 2[nd] defendant, the 2[nd] defendant had adopted the contentions of the 1[st] defendant, who was in the office during the relevant time. The evidence to be adduced in the case is essentially with regard to the official acts based on official records. The 1[st] defendant in his personal capacity could not have produced the same. At any rate, the evidence on record establishes that the allegation levelled personally against the 1[st] defendant and of the inordinate delay allegedly caused by the defendants are unsubstantiated. In the light thereof, the non-examination of the 1[st] defendant, cannot have any significance in the instant case. So also, with regard to the objection to the filing of a joint appeal, there is no prohibition under law, prohibiting the same. The 1[st] defendant is an employee of the 2[nd] defendant. The allegations are in R.F.A.No.257 of 2004 & C.O.No.115 of 2004 -: 12 :- relation to the acts done while on duty. Filing of a single appeal could not be faulted in the said circumstances. So also, no objection with regard to the maintainability, if at all any, was raised by the respondents till the final hearing of the appeal. The respondents had even filed cross objections in the appeal. At any rate, it does not affect the jurisdiction of this Court. The contention lacks merit. In the result, the appeal is allowed. The decree and judgment of the trial court are set aside and the suit will stand dismissed. The memorandum of cross objection is dismissed. No costs. Sd/- **SATHISH NINAN, JUDGE** yd